A Crack in Lautenberg?
I’ve been accused of overdoing it in motions practice, but today’s opinion from the Seventh Circuit Court of Appeals in United States v. Skoien is vindication in my eyes.
Steven Skoien pleaded guilty to possessing a firearm (hunting shotgun) after being convicted of a misdemeanor crime of domestic-violence in violation of 18 U.S.C. 922(g)(9) (the so-called Lautenberg Amendment). However, he reserved his Second Amendment challenge to the law in his plea.
The Government, in response to his challenge, essentially argued only that Heller’s presumption of lawfulness of certain categories of gun regulations, such as felon-in-possession prohibitions, extends to 922(g)(9). Nice try. The court reversed and remanded for further proceedings to better develop the record, essentially forcing counsel to write that long brief after all (specifically: “the government has made little effort to discharge its burden of demonstrating the relationship between § 922(g)(9)’s means and its end”).
On a side note, I don’t think I’ve ever seen a statute citation used with an apostrophic possessive.
What’s interesting is that the court found that Skoien didn’t necessarily lose his Second Amendment rights when he was convicted of the misdemeanor domestic-violence offense. It then determined that intermediate scrutiny applies to determine the “reasonable fit between the perpetual disarmament of domestic-violence misdemeanants and the important goal of preventing gun violence against domestic intimates.” However, as discussed, it found the record to be insufficiently developed on the ultimate issue.
And then there’s this bit:
We note that § 922(g)(9) is overinclusive on several fronts: The firearms prohibition exists indefinitely; it contains no exceptions nor any basis for potential restoration of gun rights; and it does not require an individualized finding of risk that the domestic-violence misdemeanant might use a gun in a future offense. On the other hand, the statutory definition of “misdemeanor crime of domestic violence” limits the applicability of § 922(g)(9)’s firearms disability to those who actually used or attempted to use physical force or threatened the use of a deadly weapon in a domestic disturbance. The statute thus targets a specific class of violent offender; only those who have already used or attempted to use force or have threatened the use of a deadly weapon against a domestic victim are banned from possessing firearms.
(emphasis added).
I saw plenty of issues relating to this prohibition while doing my time in Legal Assistance. This is the first post-Heller challenge I’ve seen. It’ll be interesting to see where it goes.
I’d like to see Lautenberg go right into the dustbin. It’s always been blatantly unconstitutional in it’s ex post facto wording, and calls for excessive punishment for a minor criminal act.
Either make domestic violence a major violent felony, or drop this law. It’s a feel-good knee-jerk from the old NJ reactionary himself, and it’s high time it was dumped.
At the very least limit the limitation. Cut “forever” down to 180 days or a year. We are talking about a misdemeanor.
Ok, I’m not a lawyer, but the quoted part makes no sense to me. How can you be convicted of the crime of domestic violence if you HAVEN’T “used or attempted to use physical force” or “threatened the use of a deadly weapon”? That’s what makes it VIOLENT. Otherwise it’s called “having an argument” and that isn’t yet a crime. Or can you be convicted of said crime if you only threatened or implied a non-lethal beating or similar merely painful violent act?
Too many shades of gray for this commoner.
Um, people have been convicted of DV from slamming a door too hard and the intimate partner called it in. Or, yes, arguing too loudly and the neighbors complained. Not much ain’t a crime these days…
Tony Gibart DV prevention cordinator is worried that this case might leave a wrong impression that firearm restrictions imposed on those convicted of domestic violence are somehow different in kind from similar restrictions on felons and those deemed mentally incompetent. The truth is they should be different. The key word here is misdemeanor. They can be trusted to hold public office, to vote and sit on a jury, but they cant own a gun, makes a whole lot of sense. Tony Gibart claims to have all this evidence, that seven victims have been killed with firearms with previous DV convictons. Guess what they still got there hands on guns. Out of all statistics shown I wonder if they ever show any about those being previosly convicted staying out of trouble lets say ten or twenty years, I doubt it because they claim that is goes unreported, and they feel that it give them justification to judge everybody the same. The truth is not everybod with a misdemeanor domestic violence conviction comes home on a daily basis and manipulates every aspect of there spouses lives. I wonder if the statistics of those with felony and misdemeanor convictions are separate, if not they should be because they are different classes of offenders. The statistics that are shown are only partial truths. If Skoines crime was severe enough to lose his second amendment rights he should of been charged with a felony he was not, this is a failure of the judges if they are failing to do so. Good people are losing there right to bear arms as something as a silly argument. I know a few women that claim that they are tired of people like tony gibart meddling with there lives over someting as silly as a argument with there spouse. If any type of intervention was required it should have been classified as a felony. Right now it is easier for violent felons to get there second amendment rights restored than those convicted with a misdemeanor domestic violence conviction. I guess it is okay to take a risk of someone being a menace to an entire society over family issues. To strip one of there rights over what they think he or she might do is purely unconstitutional. To treat felons better that misdemeanants is unconstitutional. The lautenberg goes far beyond domestic violence take this terror watch list for example, they are talking about putting returning veterans from iraq and afgahanistan on it that could strip them of there second amendment rights. This is a slap in the face to our men and woman serving in uniform. Might I remind Tony Gibart that if it werent for our veterans that they would not be able to exercise any right. It is time that the government and people like tony gibart to stop micro managing americans life. They are trying to strip away the second amendment slowly with amendment after amendment. To sentence one for exercising his constitutional right is tyrany. How can one lose a constitutional right when the offense was not severe enough to lose core civil rights. The ex po facto thing has been argued time and time again, how can memebers of congress dare say that losing your god giving constitutional right is not considered punishment. America please wake up.